Citation Nr: 0015892
Decision Date: 06/15/00 Archive Date: 06/22/00
DOCKET NO. 96-17 887 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to an effective date earlier than March 14, 1994
for an award of service connection for lung cancer.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K. Conner, Associate Counsel
INTRODUCTION
The veteran had more than 21 years of active military
service, ending with his retirement in January 1986.
On October 11, 1988, he filed an original claim of service
connection for lung cancer, arguing that such condition had
had its inception in service; he did not assert that his lung
cancer was secondary to exposure to Agent Orange. By April
1989 rating decision, the Department of Veterans Affairs (VA)
Albuquerque Regional Office (RO), denied his claim on the
basis that lung cancer had not been shown in service or
within the one-year presumptive period following separation
from service. This decision was upheld by the Board of
Veterans' Appeals (Board) in a November 1991 decision on the
same basis. Neither decision addressed former 38 C.F.R.
§ 3.311a, governing claims based on exposure to herbicides
containing dioxin, such as Agent Orange.
In June 1994, new VA regulations pertaining to Agent Orange
claims became effective. These regulations, promulgated in
response to a U.S. District Court decision (Nehmer v. U.S.
Veterans Admin., 712 F. Supp. 1404, 1423 (N.D. Cal. 1989)),
provided for a presumption of exposure to herbicide agents
for veterans who served on active duty in Vietnam during the
Vietnam era and stipulated the diseases for which service
connection may be presumed due to an association with
exposure such herbicide agents. These specified diseases
included respiratory cancers. See 59 Fed. Reg. 29,723
(1994).
On March 14, 1994, the veteran again requested service
connection for lung cancer, now arguing that his condition
was secondary to exposure to Agent Orange in Vietnam. By
October 1994 rating decision, the Little Rock RO granted
service connection for lung cancer, secondary to exposure to
Agent Orange, and assigned an initial 30 percent disability
rating thereto, effective June 9, 1994.
The veteran appealed both the initial 30 percent rating and
the effective date of the award of service connection.
Before the matter was certified to the Board, by March 1995
rating decision, the RO increased the initial rating for lung
cancer to 100 percent, thus satisfying the appeal with
respect to that issue. AB v. Brown, 6 Vet. App. 35, 39
(1993). By July 1995 rating decision, the RO assigned an
effective date of March 14, 1994 (the date of receipt of his
reopened claim) for the award of service connection for lung
cancer.
By November 6, 1997 decision, the Board denied an effective
date earlier than March 14, 1994, for the award of service
connection for lung cancer. The Board based its decision on
VA O.G.C. Prec. Op. No. 15-95, 60 Fed. Reg. 43,187 (1995),
which provided that in cases where prior claims did not
assert that the disability was due to herbicide exposure or
had not been denied under the invalidated Agent Orange
regulations, there was no basis for assigning an effective
date from the date of the original claim; rather, the
appropriate effective date was the date of receipt of the
reopened claim of service connection for disability based on
Agent Orange exposure.
The veteran appealed the Board's November 6, 1997 decision to
the U.S. Court of Appeals for Veterans Claims (Court). While
the case was pending before the Court, in April 1999, the
General Counsel withdrew portions of VA O.G.C. Prec. Op. No.
15-95 to conform with a February 1999 order of a U.S.
District Court. Nehmer v. U.S. Department of Veterans'
Affairs, 32 F. Supp. 2d 1175, 1183 (N.D. Cal. 1999). In the
February 1999 order, the District Court concluded that
whether the original claim had expressly referenced herbicide
exposure or had been denied under former section 3.311a was
not controlling for effective date purposes.
Accordingly, by October 1999 order, the Court reversed the
Board's November 6, 1997 decision and remanded the matter
"for assignment of a new effective date not later than
October 11, 1988," the date of receipt of the veteran's
original claim. In addition, the Court indicated that "[o]n
remand, the Board shall consider whether the appellant is
entitled to an effective date prior to October 11, 1988, and
assign a disability rating for the period between the
effective date that is to be assigned (at least October 11,
1988), and the current effective date of March 14, 1994."
Id.
As set forth below in detail below, the Board has determined
that an effective date of August 31, 1988, for the award of
service connection for lung cancer is warranted. Therefore,
in accordance with applicable law, the matter of the rating
to be assigned for the period from August 31, 1988 to March
14, 1994, is referred to the RO for initial adjudicative
determination, following any necessary development.
38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. § 20.101 (1999).
FINDING OF FACT
1. On August 31, 1988, the veteran was hospitalized for
treatment of lung cancer at William Beaumont Army Medical
Center (AMC).
2. On October 11, 1988, his claim of service connection for
lung cancer was received at the RO.
3. By October 1999 order, the Court directed the Board to
assign an effective date "not later than October 11, 1988,"
for the award of service connection for lung cancer.
CONCLUSION OF LAW
The criteria for an effective date of August 31, 1988, but no
earlier, for the award of service connection for lung cancer
have been met. 38 U.S.C. § 5110(a) (West 1991); 38 C.F.R.
§§ 3.157, 3.400 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The uncontroverted evidence of record shows that the
veteran's original claim of service connection for lung
cancer was received at the RO on October 11, 1988. The
evidence does not show, nor does the veteran contend, that he
filed a claim of service connection for lung cancer prior to
that time. Nonetheless, he has argued that he is entitled to
an effective date of August 31, 1988, as he was first
hospitalized for treatment of lung cancer at that time.
In general, the effective date of an award of compensation
benefits will be the date of receipt of a claim or the date
entitlement arose, whichever is the later. See 38 U.S.C.A. §
5110 (West 1991); 38 C.F.R. § 3.400 (1999). In certain
circumstances, the date of admission to a VA or uniformed
services hospital will be accepted as the date of receipt of
a claim, when such reports relate to examination or treatment
of a disability for which service connection has previously
been established or when a claim specifying the benefit
sought is received within one year from the date of such
examination, treatment or hospital admission. 38 C.F.R. §
3.157(b)(1) (1999).
In this case, the veteran has indicated that he was
hospitalized for treatment of lung cancer on August 31, 1988
at William Beaumont AMC. Although a copy of that particular
hospital report has not been associated with the claims
folder, there is of record a January 1989 statement from a
military physician who indicated that he treated the veteran
there beginning in August 1988 for large cell
undifferentiated lung cancer. Keeping in mind the Court's
expressed sympathy for the veteran's concerns as to further
delay and their instructions to resolve this matter
forthwith, the Board finds that a remand to obtain the August
31, 1988 hospital report would unnecessarily delay these
proceedings. Thus, in the Board's judgment, the veteran's
assertions that he was hospitalized on August 31, 1988 at a
uniformed services hospital (together with the supporting
report of record from a treating military physician) are
sufficient for purposes of this appeal.
In view of the foregoing, and affording the veteran the
benefit of the doubt, the Board finds that the criteria for
an effective date of August 31, 1988, for the award of
service connection for lung cancer have been met. In sum,
the veteran was hospitalized at a uniformed services facility
on August 31, 1988 for treatment of lung cancer. His claim
of service connection for that disability was received at the
RO on October 11, 1988, within one year of his admission
there. Thus, pursuant to 38 C.F.R. § 3.157(b)(1), an
effective date of August 31, 1988 is warranted.
However, the Board can find no legal basis for an effective
date earlier than August 31, 1988 for the award of service
connection for lung cancer. Under applicable criteria,
unless specifically provided otherwise, the effective date of
an award based on an original claim shall be the day
following the date of the veteran's discharge or release from
active service if the application therefor is received within
one year from such date of discharge or release; otherwise,
the effective date shall not be earlier than the date of
receipt of application therefor. 38 U.S.C.A. § 5110(a),(b).
Here, the record does not show, nor does the veteran contend,
that he filed a claim of service connection for lung cancer
within one year of his separation from service or at any time
prior to August 31, 1988. In fact, logic dictates that he
could not have filed a claim of service connection for lung
cancer prior to the date he was diagnosed with that disease.
Nonetheless, the Board has carefully reviewed the record, but
finds no document dated prior to August 31, 1988, which
could, under any conceivable interpretation, be considered an
informal claim of service connection for lung cancer.
Moreover, the veteran has not requested an effective date
earlier than August 31, 1988.
In reaching this decision, the Board notes that the veteran
has cited 38 C.F.R. § 3.400(o)(2) in support of his claim.
Those provisions provide that the effective date of an
increased rating is the earliest date as of which it is
factually ascertainable that an increase in disability had
occurred, if a claim is received within 1 year from such
date, otherwise, the date of the receipt of the claim. 38
C.F.R. § 3.400(o). In this case, the veteran's claim
involves an award of service connection, not an award of an
increased rating. Thus, the provisions of 38 C.F.R.
§ 3.400(o)(2) are not for application.
In conclusion, given the facts in this case, there is no
legal basis on which the Board can assign an effective date
earlier than August 31, 1988 for the award of service
connection for lung cancer.
ORDER
An effective date of August 31, 1988, but no earlier, for the
award of service connection for lung cancer is granted.
J.F. GOUGH
Member, Board of Veterans' Appeals